Changes to Florida’s Stalking laws / statutes

Florida recently made some changes to its law regarding stalking, which went into effect just over a week ago, October 1, 2012. Some changes were also made to the laws regarding injunctions related to stalking: specifically, a specific statute for stalking injunctions was created. I’ll address this briefly… as the new cause of action is a waste of legislative effort and ink. Stalking was already specifically listed as a crime that could trigger an injunction. This new law probably makes some lawmaker feel good for having passed it, and earned some good publicity, but it doesn’t create a cause of action that wasn’t already available. Mostly, it’s repetitive and adds to the already voluminous Florida Statutes, which already fill six books.

Regarding the criminal stalking statute, Section 784.048 of the Florida Statutes, one of the main changes was to alter some of the definitional language. The most dramatic changes are to the language of the “credible threat” definition. The definition was changed to specifically incorporate verbal and nonverbal threats, including those by electronic communication and by pattern of conduct. This is rather silly, as the old definition more broadly covered any “threat”, I don’t know why the legislature felt it necessary to delineate or pare down the broader language. Again, good publicity for the bill sponsor, I’m sure.

The changes go on to eliminate the intent requirement from the definition of “credible threat”, essentially making the crime a strict liability offense. I doubt that this change is constitutional. Traditionally, criminal statutes require some ‘mens rea’, criminal intent, before we subject people to incarceration for the activity. The amended statute means that an inadvertent comment, which was not intended to place fear in anyone, could result in prosecution if that comment gets to the person, and they become afraid, even if the speaker never meant to scare them. You can read the full text here. This could punish some innocent speech. The statue includes langauge excepting “constitutionally protected activity” from being included in the prohibition: and last I checked, most speech is constitutionally protected. Interestingly, simply using the word threat in the amended definition may preclude the effort to remove intent from the offense, as threat is traditionally defined as a statement of an intent to cause harm. Formerly, the language read: “…a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety.”

The statute still includes a requirement that the fear be reasonable. Language was added to say that incarceration is not a bar to prosecution for violations, not that it ever was. Also, there’s no need to prove the ability to carry out the threat, not that ability was required by the old language, either.

To be guilty of the offense of aggravated stalking, the defendant must be guilty of stalking the individual and have an aggravating factor, such as making a “credible threat” (or having an injunction, etc). The language does expand “credible threat” to include not only the person, but their family as well, which is a pretty sensible clarification of the definition (there was previously some inclusory language in the felony subsection.)

Additionally, the statute now authorizes the court to issue an injunction for up to 10 years which may be the most sensible addition. It’s a civil remedy, not an unlawful punishment. It spares the victim the necessity of going to court separately for an injunction that could exceed the incarceration or supervision on the criminal case, but does not affect the ability to seek other relief in civil court, such as a permanent injunction. This provision adds a good option for the judge, without being unnecessarily repetitive or burdensome. #newlaws

an inadvertent comment was made, which was not intended to place fear in anyone, if that comment would cause fear in a reasonably prudent person of average sensitivities? So here, the commenter didn’t actually know, but should have known the comment would scare the average person.

FS 784.048)(1)(c)
(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.

The constitutional concern is not the inference of intent, it’s the statutory language itself. That is: the statute on its face does not require an intent element. Unfortunately, I think the new language of the statute could criminalize that innocent statement (regardless of whether the commenter ‘should have known’ that it might place someone in fear). To make an example out of your hypo- guy says, “my phone is gonna blow up tonight” and somebody takes that literally, and believes he is threatening them. They are afraid, and he is arrested, in spite of not having any intent to threaten anyone. That’s a silly example, admittedly, but it demonstrates the problem of taking intent out of the statute.

My 19yr old son is accused of aggravated stalking, which appears to be a counter charge to a beating he received from his girlfriends family when he was returning her clothes to their front porch (at 4.00 am!). The girl apparently checked herself into hospital for 6 months, so the stalking charge appears bogus. How can we attempt to prove this/ is it their word(s) against my son?

Have they filed for an injunction, or a criminal charge? Either way, he has a right to contest it in court, and I recommend you get an experienced attorney to represent him. It’s tricky when it’s a he said/she said: the devil’s in the details and a good attorney can use the details to demonstrate when the stories diverge to question reliability and credibility.